| CHAPTER XIII ON THE STATE OF THE CONSTITUTION UNDER CHARLES II. | |
| Effect of the Press—Restrictions upon it before and after the Restoration—LicensingActs—Political Writings checked by the Judges—Instancesof illegal Proclamations not numerous—Juries fined forVerdicts—Question of their Right to return a General Verdict—HabeasCorpus Act passed—Differences between Lords and Commons—JudicialPowers of the Lords historically traced—Their Pretensionsabout the Time of the Restoration—Resistance made by the Commons—Disputeabout their original Jurisdiction—And that in Appealsfrom Courts of Equity—Question of the exclusive Right of theCommons as to Money-bills—Its History—The Right extendedfarther—State of the Upper House under the Tudors and Stuarts—Augmentationof the Temporal Lords—State of the Commons—Increaseof their Members—Question as to Rights of Election—Fourdifferent Theories as to the Original Principle—Their Probabilityconsidered | [Page 1] |
| CHAPTER XIV THE REIGN OF JAMES II. | |
| Designs of the King—Parliament of 1685—King's Intention to repeal theTest Act—Deceived as to the Dispositions of his Subjects—Prorogationof Parliament—Dispensing Power confirmed by the Judges—EcclesiasticalCommission—King's Scheme of establishing Popery—Dismissalof Lord Rochester—Prince of Orange alarmed—Plan ofsetting the Princess aside—Rejected by the King—Overtures of theMalcontents to Prince of Orange—Declaration for Liberty of Conscience—Addressesin favour of it—New-modelling of the Corporations—Affairof Magdalen College—Infatuation of the King—His Coldnesstowards Louis—Invitation signed to the Prince of Orange—Birth ofPrince of Wales—Justice and Necessity of the Revolution—FavourableCircumstances attending it—Its salutary Consequences—Proceedingsof the Convention—Ended by the Elevation of William andMary to the Throne | [Page 43] |
| CHAPTER XV ON THE REIGN OF WILLIAM III. | |
| Declaration of Rights—Bill of Rights—Military Force without Consentdeclared illegal—Discontent with the new Government—its Causes—Incompatibilityof the Revolution with received Principles—Characterand Errors of William—Jealousy of the Whigs—Bill of Indemnity—Billfor Restoring Corporations—Settlement of the Revenue—Appropriationof Supplies—Dissatisfaction of the King—No RepublicanParty in Existence—William employs Tories in Ministry—Intrigueswith the late King—Schemes for his Restoration—Attainder of SirJohn Fenwick—Ill Success of the War—Its Expenses—Treaty ofRyswick—Jealousy of the Commons—Army reduced—Irish Forfeituresresumed—Parliamentary Enquiries—Treaties of Partition—Improvementsin Constitution under William—Bill for TriennialParliaments—Law of Treason—Statute of Edward III.—Its constructiveInterpretation—Statute of William III.—Liberty of thePress—Law of Libel—Religious Toleration—Attempt at Comprehension—Schismof the Non-jurors—Laws against Roman Catholics—Actof Settlement—Limitations of Prerogative contained in it—PrivyCouncil superseded by a Cabinet—Exclusion of Placemen andPensioners from Parliament—Independence of Judges—Oath ofAbjuration | [Page 90] |
| CHAPTER XVI ON THE STATE OF THE CONSTITUTION IN THE REIGNS OF ANNE,GEORGE I., AND GEORGE II. | |
| Termination of Contest between the Crown and Parliament—DistinctivePrinciples of Whigs and Tories—Changes effected in these by Circumstances—Impeachmentof Sacheverel displays them again—Revolutionsin the Ministry under Anne—War of the Succession—Treaty ofPeace broken off—Renewed again by the Tory Government—Argumentsfor and against the Treaty of Utrecht—The Negotiation mismanaged—Intriguesof the Jacobites—Some of the Ministers engagein them—Just alarm for the Hanover Succession—Accession ofGeorge I.—Whigs come into Power—Great Disaffection in theKingdom—Impeachment of Tory Ministers—Bill for septennial Parliaments—PeerageBill—Jacobitism among the Clergy—Convocation—ItsEncroachments—Hoadley—Convocation no longer suffered tosit—Infringements of the Toleration by Statutes under Anne—Theyare repealed by the Whigs—Principles of Toleration fully established—Banishmentof Atterbury—Decline of the Jacobites—Prejudicesagainst the reigning Family—Jealousy of the Crown—Changes in theConstitution whereon it was founded—Permanent military Force—Apprehensionsfrom it—Establishment of Militia—Influence overParliament by Places and Pensions—Attempts to restrain it—PlaceBill of 1743—Secret Corruption—Commitments for Breach of Privilege—ofMembers for Offences—of Strangers for Offences against Members—orfor Offences against the House—Kentish Petition of 1701—Disputewith Lords about Aylesbury Election—Proceedings againstMr. Murray in 1751—Commitments for Offences unconnected with theHouse—Privileges of the House not controllable by Courts of Law—Dangerof stretching this too far—Extension of Penal Laws—Diminutionof personal Authority of the Crown—Causes of this—PartyConnections—Influence of Political Writings—Publication of Debates—IncreasedInfluence of the Middle Ranks | [Page 175] |
| CHAPTER XVII ON THE CONSTITUTION OF SCOTLAND | |
| Early State of Scotland—Introduction of Feudal System—Scots Parliament—Powerof the Aristocracy—Royal Influence in Parliament—JudicialPower—Court of Session—Reformation—Power of thePresbyterian Clergy—Their Attempts at Independence on the State—AndrewMelville—Success of James VI. in restraining them—Establishmentof Episcopacy—Innovations of Charles I.—ArbitraryGovernment—Civil War—Tyrannical Government of Charles II.—Reignof James VII.—Revolution and Establishment of Presbytery—Reignof William III.—Act of Security—Union—Gradual Declineof Jacobitism | [Page 266] |
| CHAPTER XVIII ON THE CONSTITUTION OF IRELAND | |
| Ancient State of Ireland—Its Kingdoms and Chieftainships—Law ofTanistry and Gavel-kind—Rude State of Society—Invasion of HenryII.—Acquisitions of English Barons—Forms of English Constitutionestablished—Exclusion of Native Irish from them—Degeneracy ofEnglish Settlers—Parliament of Ireland—Disorderly State of theIsland—The Irish regain part of their Territories—English Lawconfined to the Pale—Poyning's Law—Royal Authority revives underHenry VIII.—Resistance of Irish to Act of Supremacy—ProtestantChurch established by Elizabeth—Effects of this Measure—Rebellionsof her Reign—Opposition in Parliament—Arbitrary Proceedings ofSir Henry Sidney—James I.—Laws against Catholics enforced—EnglishLaw established throughout Ireland—Settlements of Englishin Munster, Ulster, and other Parts—Injustice attending them—Constitutionof Irish Parliament—Charles I. promises Graces to the Irish—Doesnot confirm them—Administration of Strafford—Rebellionof 1641—Subjugation of Irish by Cromwell—Restoration of Charles II.—Actof Settlement—Hopes of Catholics under Charles and James—Warof 1689, and final Reduction of Ireland—Penal Laws againstCatholics—Dependence of Irish on English Parliament—Growth of aPatriotic Party in 1753 | [Page 299] |
CONSTITUTIONAL HISTORY
OF ENGLAND
FROM HENRY VII. TO GEORGE II.
CHAPTER XIII
ON THE STATE OF THE CONSTITUTION UNDER CHARLES II.
It may seem rather an extraordinary position, after the last chapters, yet is strictly true, that the fundamental privileges of the subject were less invaded, the prerogative swerved into fewer excesses, during the reign of Charles II. than perhaps in any former period of equal length. Thanks to the patriot energies of Selden and Eliot, of Pym and Hampden, the constitutional boundaries of royal power had been so well established that no minister was daring enough to attempt any flagrant and general violation of them. The frequent session of parliament, and its high estimation of its own privileges, furnished a security against illegal taxation. Nothing of this sort has been imputed to the government of Charles, the first King of England, perhaps, whose reign was wholly free from such a charge. And as the nation happily escaped the attempts that were made after the restoration, to revive the star-chamber and high-commission courts, there was no means of chastising political delinquencies, except through the regular tribunals of justice, and through the verdict of a jury. Ill as the one were often constituted, and submissive as the other might often be found, they afforded something more of a guarantee, were it only by the publicity of their proceedings, than the dark and silent divan of courtiers and prelates who sat in judgment under the two former kings. Though the bench was frequently subservient, the bar contained high-spirited advocates, whose firm defence of their clients the judges often reproved, but no longer affected to punish. The press, above all, was in continual service. An eagerness to peruse cheap and ephemeral tracts on all subjects of passing interest had prevailed ever since the reformation. These had been extraordinarily multiplied from the meeting of the long parliament. Some thousand pamphlets of different descriptions, written between that time and the restoration, may be found in the British Museum; and no collection can be supposed to be perfect. It would have required the summary process and stern severity of the court of star-chamber to repress this torrent, or reduce it to those bounds which a government is apt to consider as secure. But the measures taken with this view under Charles II. require to be distinctly noticed.
Effect of the press—Restrictions upon it before and after the restoration.—In the reign of Henry VIII., when the political importance of the art of printing, especially in the great question of the reformation, began to be apprehended, it was thought necessary to assume an absolute control over it, partly by the king's general prerogative, and still more by virtue of his ecclesiastical supremacy.[1] Thus it became usual to grant by letters patent the exclusive right of printing the Bible or religious books, and afterwards all others. The privilege of keeping presses was limited to the members of the stationers' company, who were bound by regulations established in the reign of Mary by the star-chamber, for the contravention of which they incurred the speedy chastisement of that vigilant tribunal. These regulations not only limited the number of presses, and of men who should be employed on them, but subjected new publications to the previous inspection of a licencer. The long parliament did not hesitate to copy this precedent of a tyranny they had overthrown; and by repeated ordinances against unlicensed printing, hindered, as far as in them lay, this great instrument of political power from serving the purposes of their adversaries. Every government, however popular in name or origin, must have some uneasiness from the great mass of the multitude, some vicissitudes of public opinion to apprehend; and experience shows that republics, especially in a revolutionary season, shrink as instinctively, and sometimes as reasonably, from an open licence of the tongue and pen, as the most jealous court. We read the noble apology of Milton for the freedom of the press with admiration; but it had little influence on the parliament to whom it was addressed.
Licensing acts.—It might easily be anticipated, from the general spirit of Lord Clarendon's administration, that he would not suffer the press to emancipate itself from these established shackles.[2] A bill for the regulation of printing failed in 1661, from the Commons' jealousy of the Peers who had inserted a clause exempting their own houses from search.[3] But next year a statute was enacted, which, reciting the well-government and regulating of printers and printing-presses to be matter of public care and concernment, and that by the general licentiousness of the late times many evil-disposed persons had been encouraged to print and sell heretical and seditious books, prohibits every private person from printing any book or pamphlet, unless entered with the stationers' company, and duly licensed in the following manner; to wit, books of law by the chancellor or one of the chief justices, of history and politics by the secretary of state, of heraldry by the kings at arms, of divinity, physic or philosophy, by the bishops of Canterbury or London, or if printed in either university, by its chancellor. The number of master-printers was limited to twenty; they were to give security, to affix their names, and to declare the author, if required by the licencer. The king's messengers, by warrant from a secretary of state, or the master and wardens of the stationers' company, were empowered to seize unlicensed copies wherever they should think fit to search for them, and, in case they should find any unlicensed book suspected to contain matters contrary to the church or state, they were to bring them to the two bishops before mentioned, or one of the secretaries. No books were allowed to be printed out of London, except in York and in the universities. The penalties for printing without licence were of course heavy.[4] This act was only to last three years; and after being twice renewed (the last time until the conclusion of the first session of the next parliament), expired consequently in 1679; an æra when the House of Commons were happily in so different a temper that any attempt to revive it must have proved abortive. During its continuance, the business of licensing books was entrusted to Sir Roger L'Estrange, a well-known pamphleteer of that age, and himself a most scurrilous libeller in behalf of the party he espoused, that of popery and despotic power. It is hardly necessary to remind the reader of the objections that were raised to one or two lines in Paradise Lost.
Political writings checked by the judges.—Though a previous licence ceased to be necessary, it was held by all the judges, having met for this purpose (if we believe Chief Justice Scroggs) by the king's command, that all books scandalous to the government or to private persons may be seized, and the authors or those exposing them punished: and that all writers of false news, though not scandalous or seditious, are indictable on that account.[5] But in a subsequent trial he informs the jury that, "when by the king's command we were to give in our opinion what was to be done in point of regulation of the press, we did all subscribe that to print or publish any news, books, or pamphlets of news whatsoever is illegal; that it is a manifest intent to the breach of the peace, and they may be proceeded against by law as an illegal thing.[6] Suppose now that this thing is not scandalous, what then? If there had been no reflection in this book at all, yet it is illicite; and the author ought to be convicted for it. And that is for a public notice to all people, and especially printers and booksellers, that they ought to print no book or pamphlet of news whatsoever without authority." The pretended libel in this case was a periodical pamphlet, entitled the Weekly Pacquet of Advice from Rome; being rather a virulent attack on popery, than serving the purpose of a newspaper. These extraordinary propositions were so far from being loosely advanced, that the court of king's bench proceeded to make an order, that the book should no longer be printed or published by any person whatsoever.[7] Such an order was evidently beyond the competence of that court, were even the prerogative of the king in council as high as its warmest advocates could strain it. It formed accordingly one article of the impeachment voted against Scroggs in the next session.[8] Another was for issuing general warrants (that is, warrants wherein no names are mentioned) to seize seditious libels and apprehend their authors.[9] But this impeachment having fallen to the ground, no check was put to general warrants, at least from the secretary of state, till the famous judgment of the court of common pleas in 1764.
Instances of illegal proclamations not numerous.—Those encroachments on the legislative supremacy of parliament, and on the personal rights of the subject, by means of proclamations issued from the privy council, which had rendered former princes of both the Tudor and Stuart families almost arbitrary masters of their people, had fallen with the odious tribunal by which they were enforced. The king was restored to nothing but what the law had preserved to him. Few instances appear of illegal proclamations in his reign. One of these, in 1665, required all officers and soldiers who had served in the armies of the late usurped powers to depart the cities of London and Westminster, and not to return within twenty miles of them before the November following. This seems connected with the well-grounded apprehension of a republican conspiracy.[10] Another, immediately after the fire of London, directed the mode in which houses should be rebuilt, and enjoined the lord mayor and other city magistrates to pull down whatsoever obstinate and refractory persons might presume to erect upon pretence that the ground was their own; and especially that no houses of timber should be erected for the future.[11] Though the public benefit of this restriction, and of some order as to the rebuilding of a city which had been destroyed in great measure through the want of it, was sufficiently manifest, it is impossible to justify the tone and tenor of this proclamation; and more particularly as the meeting of parliament was very near at hand. But an act having passed therein for the same purpose, the proclamation must be considered as having had little effect. Another instance, and far less capable of extenuation, is a proclamation for shutting up coffee-houses, in December 1675. I have already mentioned this as an intended measure of Lord Clarendon. Coffee-houses were all at that time subject to a licence, granted by the magistrates at quarter sessions. But, the licences having been granted for a certain time, it was justly questioned whether they could in any manner be revoked. This proclamation being of such disputable legality, the judges, according to North, were consulted, and intimating to the council that they were not agreed in opinion upon the most material questions submitted to them, it seemed advisable to recall it.[12] In this essential matter of proclamations, therefore, the administration of Charles II. is very advantageously compared with that of his father; and considering at the same time the entire cessation of impositions of money without consent of parliament, we must admit that, however dark might be his designs, there were no such general infringements of public liberty in his reign as had continually occurred before the long parliament.
One undeniable fundamental privilege had survived the shocks of every revolution; and in the worst times, except those of the late usurpation, had been the standing record of primeval liberty—the trial by jury: whatever infringement had been made on this, in many cases of misdemeanour, by the pretended jurisdiction of the star-chamber, it was impossible, after the bold reformers of 1641 had lopped off that unsightly excrescence from the constitution, to prevent a criminal charge from passing the legal course of investigation through the inquest of a grand jury, and the verdict in open court of a petty jury. But the judges, and other ministers of justice, for the sake of their own authority or that of the Crown, devised various means of subjecting juries to their own direction, by intimidation, by unfair returns of the panel, or by narrowing the boundaries of their lawful function.